Citation Nr: 0627100
Decision Date: 08/28/06 Archive Date: 09/06/06
DOCKET NO. 03-15 157 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased rating for post operative
residuals of a left knee disability, currently evaluated as
10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The veteran served on active duty from February 1988 to April
1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. In April 2005, the Board remanded this
issue for further evidentiary development.
FINDING OF FACT
The preponderance of the evidence is against showing that
post operative residuals of a left knee disability include
slight subluxation or lateral instability; or that flexion is
limited to 30 degrees; or that extension is limited to 15
degrees even taking into account complaints of pain; or that
the left knee disorder acting alone has resulted in frequent
periods of hospitalization or in a marked interference with
employment.
CONCLUSION OF LAW
The veteran does not meet the criteria for a higher schedular
or extraschedular evaluation for post operative residuals of
a left knee disability. 38 U.S.C.A. §§ 1155, 5102, 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102,
3.159, 3.321, 3.326, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a,
Diagnostic Codes 5257, 5258, 5259, 5260, 5261 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., existence
of a current disability; the degree of disability, and the
effective date of any disability benefits. The veteran must
also be notified to submit all evidence in his possession,
what specific evidence he is to provide, and what evidence VA
will attempt to obtain. VA thirdly has a duty to assist
claimants in obtaining evidence needed to substantiate a
claim. This includes obtaining all relevant evidence
adequately identified in the record, and in some cases,
affording VA examinations. 38 U.S.C.A. § 5103A.
In this case, there is no issue as to providing an
appropriate application form or completeness of the
application. Written notice provided in August 2001 prior to
the appealed from rating decision along with the subsequent
April 2005 correspondence fulfills the provisions of 38
U.S.C.A. § 5103(a) save for a failure to provide notice of
the type of evidence necessary to establish an effective date
for the disability on appeal. Thereafter, the claim was
readjudicated in the February 2006 supplemental statement of
the case. The failure to provide notice of the type of
evidence necessary to establish an effective date for the
disability on appeal is harmless because the preponderance of
the evidence is against the appellant's claim, and any
questions as to the appropriate effective date to be assigned
are moot. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Finally, VA has secured all available pertinent evidence and
conducted all appropriate development. The veteran has been
afforded several VA examinations, all of his records have
been obtained from Jenni Wessels, OTR; Shannon Grubb, M.D.;
and George T. Shybut, M.D.; and there is no pertinent
evidence which is not currently part of the claims file.
Hence, VA has fulfilled its duty to assist the appellant in
the prosecution of his claim.
The Claim
The veteran contends that post operative residuals of a left
knee disability include increased adverse symptomatology that
warrant the assignment of an increased rating. It is also
requested that the veteran be afforded the benefit of the
doubt.
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practically
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected
disability is rated on the basis of specific criteria
identified by Diagnostic Codes. 38 C.F.R. § 4.27.
Additionally, although regulations require that a disability
be viewed in relation to its recorded history, 38 C.F.R.
§§ 4.1, 4.2 (2005), when assigning a disability rating, it is
the present level of disability which is of primary concern.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Regulations require that where there is a question as to
which of two evaluations is to be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
It is the Board's responsibility to weigh the evidence,
including the medical evidence, and determine where to give
credit and where to withhold the same. Evans v. West,
12 Vet. App. 22, 30 (1998). In so doing, the Board may
accept one medical opinion and reject others. Id. At the
same time, the Board cannot make its own independent medical
determinations, and that it must have plausible reasons,
based upon medical evidence in the record, for favoring one
medical opinion over another. Colvin v. Derwinski,
1 Vet. App. 171 (1991). Thus, the Board must determine the
weight to be accorded the various items of evidence in this
case based on the quality of the evidence and not necessarily
on its quantity or source.
Most recently, a May 2002 rating decision confirmed and
continued the 10 percent rating for the left knee disorder
under 38 C.F.R. § 4.71a, Diagnostic Code 5259.
Because the veteran is already receiving the maximum rating
possible under 38 C.F.R. § 4.71a, Diagnostic Code 5259, no
further discussion is required.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, impairment of
the knee, including recurrent subluxation or lateral
instability, is rated as 10 percent disabling when slight and
20 percent disabling when moderate.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a dislocated
semilunar cartilage, with frequent episodes of locking, pain,
and effusion into the joint is rated as 20 percent disabling.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, flexion of the
knee limited to 45 degrees warrants a 10 percent rating. If
flexion of the knee is limited to 30 degrees a 20 percent
rating is in order. Id.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of
the knee limited to 10 degrees warrants a 10 percent rating.
If extension of the knee is limited to 15 degrees a 20
percent rating is in order. Id.
When evaluating loss of motion, consideration is given to the
degree of functional loss caused by pain. DeLuca v. Brown,
8 Vet. App. 202 (1995). In DeLuca, the United States Court
of Appeals for Veterans Claims (Court) explained that, when
the pertinent diagnostic criteria provide for a rating on the
basis of loss of range of motion, determinations regarding
functional losses are to be "'portray[ed]' (§ 4.40) in terms
of the degree of additional range-of-motion loss due to pain
on use or during flare-ups." Id.
Under 38 C.F.R. § 4.40, disability of the musculoskeletal
system is primarily the inability, due to damage or infection
in parts of the system, to perform the normal working
movements of the body with normal excursion, strength, speed,
coordination and endurance. It is essential that the
examination on which ratings are based adequately portray the
anatomical damage, and functional loss with respect to all
these elements. The functional loss may be due to absence of
part, or all, of the necessary bones, joints and muscles, or
associated structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. A little used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like.
Additionally, 38 C.F.R. § 4.45 provides, as regards to the
joints, that the factors of disability reside in reductions
of their normal excursion of movements in different planes.
Inquiry will be directed to these considerations: (a) Less
movement than normal (due to ankylosis, limitation or
blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail joint, resections,
nonunion of fracture, relaxation of ligaments, etc.). (c)
Weakened movement (due to muscle injury, disease or injury of
peripheral nerves, divided or lengthened tendons, etc.). (d)
Excess fatigability. (e) Incoordination, impaired ability to
execute skilled movements smoothly. (f) Pain on movement,
swelling, deformity or atrophy of disuse. Instability of
station, disturbance of locomotion, interference with
sitting, standing and weight-bearing are related
considerations. For the purpose of rating disability from
arthritis, the knee is considered a major joint.
Esteban v. Brown, 6 Vet. App. 259, 261 (1994), held, in cases
where the record reflects that the veteran has multiple
problems due to a service-connected disability, it is
possible for a veteran to have "separate and distinct
manifestations" from the same injury, permitting separate
disability ratings. The critical element is that none of the
symptomatology for any of the conditions is duplicative or
overlapping with the symptomatology of the other conditions.
VA General Counsel has held that separate ratings may be
assigned in cases where a service-connected knee disability
includes both arthritis and instability provided that the
degree of disability is compensable under each set of
criteria. VAOPGCPREC 23-97 (July 1, 1997); 62 Fed. Reg. 63604
(1997). The basis for this opinion was that the applicable
rating criteria "suggest that those codes apply either to
different disabilities or to different manifestations of the
same disability..." Id.
VA General Counsel has also held that separate ratings may be
assigned in cases where a service-connected knee disability
includes both a compensable limitation of flexion under
Diagnostic Code 5260, and a compensable limitation of
extension under Diagnostic Code 5261 provided that the degree
of disability is compensable under each set of criteria.
VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for
the opinion was a finding that a limitation in planes of
movement were each compensable. Id.
As to Diagnostic Code 5257, a review of VA and/or private
treatment records dating back to 2000, including the results
from the veteran's private work capacity evaluation and four
VA examinations, does not show that any physician has ever
opined that the veteran's left knee was unstable. See, for
example, TriHealth Work Capacity Center examination dated in
March 2001; and VA examinations dated in December 2001,
February 2003, February 2004, and May 2005. In fact, VA
examiners were uniform in reporting that the left knee was
stable. Therefore, because there is no evidence in the
record that suggests any subluxation or instability in the
left knee, a separate compensable rating for the left knee is
not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5257.
As to Diagnostic Code 5258, while some VA examiners reported
the veteran's complaints of left knee catching and Dr. Shybut
noted on one occasion in April 2001 his complaints of
"episodic episodes" of catching, locking, and giving way,
the claimant denied problems with locking at his July 2003
personal hearing. Moreover, a review of the VA and/or
private treatment records dating back to 2000, including the
results from the veteran's private work capacity evaluation
and four VA examinations, does not show that he had frequent
episodes of locking, pain, and effusion into the joint. See,
for example, TriHealth Work Capacity Center examination dated
in March 2001; and VA examinations dated in December 2001,
February 2003, February 2004, and May 2005. In fact, the
examiners were uniform in not reporting effusion or locking.
Consequently, an increased rating is not warranted for the
veteran's service-connected left knee disorder under
38 C.F.R. § 4.71a, Diagnostic Code 5258.
As to Diagnostic Codes 5260 and 5261, a review of the VA
and/or private treatment records dating back to 2000,
including the results from the veteran's private work
capacity evaluation and four VA examinations, show that left
knee range of motion, at its worst, was 0 to 110 degrees.
See TriHealth Work Capacity Center examination dated in March
2001; and VA examinations dated in December 2001, February
2003, February 2004, and May 2005. (Full range of motion of
the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate
II (2005))
Therefore, because left knee flexion was not limited to 30
degrees and extension was not limited to 15 degrees, an
increased rating is not warranted based on objective clinical
findings showing a decreased range of motion. 38 C.F.R.
§ 4.71a, Diagnostic Codes 5260, 5261. Likewise, because left
knee flexion was not limited to 45 degrees and extension was
not limited to 10 degrees, separate compensable ratings are
also not warranted under these same Diagnostic Codes. Id.
Although a higher evaluation may be assigned on account of
pain causing additional functional loss, DeLuca, the salient
point is that even though the veteran complains of pain,
consideration of 38 C.F.R. §§ 4.40, 4.45 does not lead the
Board to conclude that the functional losses he experiences
in his left knee equates to the criteria for a 20 percent
rating under either Diagnostic Code 5260 or Diagnostic
Code 5261, or separate compensable ratings under these same
Diagnostic Codes.
Specifically, the March 2001 TriHealth Work Capacity Center
examination noted moderate left hamstring weakness with
strength at 3 plus/5, moderate left quadriceps weakness with
strength at 4/5, "mild" decrease in left knee range of
motion with motion at 0 to 110 degrees, and "moderate"
decrease in left medial-lateral patellar mobility. It was
also noted that the veteran had left knee weakness and
problems with stooping, squatting, and sustained kneeling.
Because the left thigh and calf were 1.5 centimeters (cm)
smaller than the right, it was opined that he had had muscle
atrophy on the left. The December 2001 VA examiner noted the
veteran's complaints of left knee pain while performing toe
raisers, 20 knee extensions and flexions with weights, and
deep knee bends; as well as objective evidence of tenderness
in the medical aspect of the proximal tibia. The February
2003 VA examiner noted the veteran's complaints of left knee
pain and objective evidence of tenderness. The February 2004
VA examiner noted the veteran's complaints of left knee pain.
Lastly, the May 2005 VA examiner noted complaints of left
knee pain. The examiner opined that the claimant had left
knee discomfort with motion from 20 to 40 degrees of flexion.
The examiner noted that the left calf muscle was 0.5 cm
smaller than the right, and after repetitive movement he had
some point tenderness. Finally, the veteran complained of
increased left knee discomfort with flexion against moderate
resistance.
However, the December 2001 VA examiner also reported that the
veteran had no effusion, swelling, redness, or heat, there
was no objective evidence of pain during motion studies. The
claimant could walk the 400 feet to the physical therapy
department and back, including walking up and down a flight
of stairs, without any difficulty; and he walked with a
normal balanced gait and an even stride at the end of the
examination. The February 2003 VA examiner also opined that
there was no inflammation, warmth, erythema, or effusion.
The February 2004 VA examiner also noted no effusion, fluid,
and the circumference of both thighs was equal indicating no
atrophy. Lastly, the May 2005 VA examiner opined that the
veteran could climb up and down from the examination table as
well as dress and undress without objective evidence of left
knee discomfort. There was no left knee swelling, erythema,
or redness; and the legs were approximately symmetric in
appearance. The left knee was not tender to palpation, and
range of motion stayed the same at 0 to 135 degrees even
after repetitive movement. Finally, the record is negative
for any evidence of ankylosis, limitation or blocking,
adhesions, tendon-tie-up, contracted scars, flail joint,
resections, nonunion of fracture, relaxation of ligaments,
excess fatigability, incoordination, swelling, instability of
station, and/or interference with sitting, standing, or
weight-bearing. 38 C.F.R. §§ 4.40, 4.45.
Accordingly, even if the Board conceded that the veteran's
pain resulted in disability that equated to an additional
limitation of flexion and/or extension of several degrees, he
would still need significant loss of motion to warrant either
a higher evaluation under Diagnostic Code 5260 or Diagnostic
Code 5261, or separate compensable ratings under these same
Diagnostic Codes. As reflected above, such is not present.
Therefore, even taking into account any loss due to pain, the
appellant's adverse symptomatology does not equate to the
criteria for either a higher or a separate evaluation under
Diagnostic Code 5260 and/or Diagnostic Code 5261. 38 C.F.R.
§§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca.
Based on the veteran's written statements to the RO,
statements to VA examiners, and his personal hearing
testimony that his left knee disorder interferes with
obtaining and/or maintaining employment, the Board considered
the application of 38 C.F.R. § 3.321(b)(1). Although the
veteran has described his pain as being so bad that he lost
significant time from work, and although he filed employment
records from 2002 verifying the fact that he took numerous
sick days during that year, the evidence does not objectively
show an exceptional or unusual disability picture as would
render impractical the application of the regular schedular
rating standards. Id. There simply is no objective evidence
that his left knee disorder acting alone has resulted in
frequent periods of hospitalization or in marked interference
with employment.
It is undisputed that this disability affects employment, but
it bears emphasis that the schedular rating criteria are
designed to take such factors into account. The schedule is
intended to compensate for average impairments in earning
capacity resulting from service-connected disability in civil
occupations. 38 U.S.C.A. § 1155. "Generally, the degrees
of disability specified in the rating schedule are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability." 38 C.F.R. § 4.1.
Therefore, given the lack of objective evidence showing
unusual disability not contemplated by the rating schedule,
the Board concludes the criteria for submission for extra-
schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1)
are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996).
In reaching the above conclusions, the Board has not
overlooked the veteran's and his representative's written
statements to the RO, the claimant's statements to VA
examiners, and the personal hearing testimony. While lay
witnesses are competent to describe experiences and symptoms
that result therefrom, because laypersons are not trained in
the field of medicine, they are not competent to provide
medical opinion evidence as to the current severity of a
disability. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992). Therefore, the veteran's and his representative's
statements addressing the severity of the left knee disorder
are not probative evidence as to the issue on appeal.
The Board also considered the reports from Dr. Shybut,
including an April 2005 report noting muscle spasms after
prolonged standing. These reports, however, do not show
evidence of the degree of lost motion or instability
necessary to justify an increased rating.
Finally, the Board considered the doctrine of reasonable
doubt. However, as the preponderance of the evidence is
against the veteran's claim, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Accordingly, the claim must be denied.
ORDER
Entitlement to an increased disability rating for post
operative residuals of a left knee disorder is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs